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Willingham v. State

United States District Court, S.D. Mississippi, Southern Division

April 16, 2018

DONOVAN WILLINGHAM PETITIONER
v.
STATE OF MISSISSIPPI RESPONDENT

          REPORT AND RECOMMENDATION

          MICHAEL T. PARKER UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on the Petition of Donovan Willingham (“Petitioner”) for Writ of Habeas Corpus [1] pursuant to 28 U.S.C. § 2254 and Respondent's Motion to Dismiss [17] pursuant to 28 U.S.C. § 2244(d). The Petition was filed May 24, 2017, [1]and the motion to dismiss was filed on December 13, 2017. Having considered the Motion, the record, and the applicable law, the undersigned recommends that Respondent's Motion to Dismiss [17] be granted and the Petition [1] be dismissed with prejudice.

         PROCEDURAL HISTORY

         On October 17, 2011, Petitioner pled guilty to robbery in the Circuit Court of Hancock County, Mississippi. See [17-1] at 3. That same day, the Circuit Court sentenced Petitioner to fifteen years in the custody of the MDOC and ordered him to participate in the Regimented Inmate Discipline (R.I.D.) Program and obtain a G.E.D. Id. After successful completion of the R.I.D. Program, Petitioner was resentenced by the Circuit Court on July 23, 2012. Id. at 5-6. His original fifteen (15) year sentence was suspended “for time served, followed by Four (4) years of reporting post release supervision and any remainder by non-reporting post-release supervision.” Id. Petitioner's post-release supervision was revoked on March 18, 2015 for committing multiple misdemeanors and for failing to pay fines. See [18-1] at 7. The court ordered Petitioner to serve “his original fifteen (15) Years with credit for four (4) Years he previously served leaving eleven (11) Years to serve in the custody of the [MDOC].” See Revocation Order [17-2].

         On October 11, 2016, [2] Petitioner filed a motion for post-conviction collateral relief in the Hancock County arguing that his revocation was unlawful for various reasons. See [17-3] at 1-22. On June 17, 2017, the state court denied that motion. Id. at 23-28 Petitioner did not appeal this decision. See Dockets [17-1] at 1-2 and [17-3] at 1. Willingham also filed a “Petition to Clarify Sentence” in Hancock County Circuit Court on November 14, 2016. See [17-4]. The Circuit Court denied this motion on June 14, 2017. Id. The record reflects that Petitioner did not appeal this decision.

         The Petitioner filed the instant Petition for Writ of Habeas Corpus [1] on May 24, 2017. Thereafter, Respondent filed his Motion to Dismiss [17], asserting that the Petition was not timely filed and should be dismissed.

         ANALYSIS

         The Antiterrorism and Effective Death Penalty Act (“AEDPA”) specifies that a petitioner seeking federal habeas relief must file a federal petition within one year from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A); Egerton v. Cockrell, 334 F.3d 433, 435 (5th Cir. 2003). The Fifth Circuit clarified the law for purposes of determining when a state conviction becomes final pursuant to Section 2244(d)(1)(A) by holding that:

The language of § 2244(d)(1)(A) provides that a decision becomes final by the conclusion of direct review or the expiration of the time for seeking such review. We previously held that direct review includes a petition for writ of certiorari to the Supreme Court. Therefore, the conclusion of direct review is when the Supreme Court either rejects the petition for certiorari or rules on its merits. If the conviction does not become final by the conclusion of direct review, it becomes final by the expiration of the time for seeking such review. We previously held that this includes the ninety days allowed for a petition to the Supreme Court following the entry of judgment by the state court of last resort. If the defendant stops the appeal process before that point, the conviction becomes final when the time for seeking further direct review in the state court expires.

Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003).

         Petitioner was sentenced on July 25, 2012, after entering a guilty plea and following his completion of the R.I.D. Program. See [17-3] at 5. Under Mississippi law, there is no direct appeal from a guilty plea. See Miss. Code Ann. § 99-35-101. If Petitioner is challenging his original conviction, his conviction became final-and the statute of limitations for federal habeas relief began to run-on July 25, 2012. If challenging his original conviction, he was required to file his federal habeas petition by July 25, 2013, unless he was entitled to statutory and/or equitable tolling. 28 U.S.C. § 2244(d)(1)(A).

         If Willingham is attempting to challenge his revocation, his revocation became final on March 19, 2015, the date on which he was sentenced following revocation.[3] Under Mississippi law, “[A]n order revoking a suspension of sentence or revoking probation is not appealable.” Beasley v. State, 795 So.2d 539 (Miss.2001) (alteration in original) (citing Pipkin v. State, 292 So.2d 181, 182 (Miss.1974)). Thus, any habeas challenge to the revocation proceeding was due March 21, 2016 (since March 19, 2016, fell on a Saturday), unless he was entitled to statutory and/or equitable tolling. 28 U.S.C. § 2244(d)(1)(A). His Petition was filed May 24, 2017, past both deadlines.

         Statutory Tolling

         Whether statutory tolling occurred is determined by reference to 28 U.S.C. § 2244(d)(2), which provides for tolling of the one-year limitation period during the time in “which a properly filed application for ...


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